In re Pierce
| Decision Date | 17 February 2023 |
| Docket Number | 22-P-78 |
| Parties | ADOPTION OF PIERCE. [1] |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered by a judge of the Juvenile Court terminating her parental rights, claiming that there was insufficient evidence to support certain findings. The father does not appeal from the termination of his parental rights, but joins with the mother in challenging the judge's approval of the adoption plan proposed by the Department of Children and Families (department) on the grounds that the adoption plan was not in the child's best interests. We affirm.
Discussion.
"In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). Adoption of Patty, 489 Mass. 630, 637 (2022).
The mother challenges several of the judge's findings regarding her fitness. We set forth a brief summary of the judge's overall findings for context.
Thirty-four years of age at the time of trial in 2021, the mother has a long history of substance use dating to when she was eighteen years old. She had heroin and Suboxone in her system when she gave birth to her oldest child in 2011. The mother's parental rights to that child were terminated, and that child was adopted by the maternal grandmother.
Pierce was born in 2014, also having been exposed to substances at the time of birth. For a variety of reasons, including the mother's positive test for opiates and amphetamines shortly before his birth, Pierce was placed in foster care with the kinship placement that ultimately became the preadoptive placement (foster parents or preadoptive parents).
When the mother and father began to participate in services, the department considered reunification and began overnight visits. However, in November of 2017 the mother tested positive for substances while in labor with a third child, and visits with Pierce were suspended. In 2018, overnight visits resumed between the parents and Pierce, and ultimately Pierce was returned to live with the mother and father in New Hampshire in April of 2018.
The father told the mother to leave in November of 2018 after she told him that Pierce might not be his child, and drove them to the maternal grandmother's house in Massachusetts. The mother and Pierce returned to live with the father in New Hampshire in February of 2019. However, in March of 2019 the mother was arrested following a domestic dispute with the father, who obtained a restraining order against her. After that incident, the mother lived in a shelter in New Hampshire and Pierce remained with the father. Some days later, the father -- now the sole parent caretaker of Pierce and his two younger brothers -- drove Pierce to the maternal grandparent's home in Massachusetts and left him there. In April of 2019, the mother returned to Massachusetts to live with the maternal grandmother and Pierce. After several weeks, the mother left with Pierce. She and Pierce stayed with various family members and friends through August of 2019.
Ultimately the department filed a second care and protection petition. In July of 2019, while she was Pierce's sole caretaker, the mother tested positive for morphine, and unprescribed oxycodone and oxymorphone. At the time the mother was not participating in substance abuse treatment, and later testified that she did not go to treatment because she did not think she needed it. The trial judge found the mother's belief to be indicative of the mother's lack of understanding of her illness or its impact on her ability to care for Pierce. During this period, the department could not locate the mother or Pierce for an extended period. The department was granted temporary custody on August 6, 2019, and Pierce was returned to the kinship placement.[2]
Between September of 2019 and February of 2020 the department social worker was unable to visit the mother, either because the mother did not answer her door or because she did not go to an agreed upon location. The mother had no contact with the department between December of 2019 and March of 2020, when the mother called the department social worker. The social worker's attempts thereafter to contact the mother were unsuccessful.[3] In June of 2020, the mother ingested heroin, along with Prozac, gabapentin, and clonidine, and was hospitalized. She entered and successfully completed the High Point program at the Shattuck Hospital and then entered a residential treatment program. She left that program before completion and the judge found that she "has not demonstrated an ability to maintain long-term engagement in substance abuse treatment and sobriety since 2011."
The mother visited Pierce sporadically. She did not visit him or ask the department about him in the fifteen-month period from December of 2019 until February of 2021. At one point, the mother stated that she did not visit him because she "needed a little mental space and time."
The mother did seek mental health treatment in the months before trial, but did not provide the department with releases that would have permitted it to confirm her progress.
At the time of trial Pierce was six and one-half years old and had lived with the preadoptive parents and their three children for approximately five years. A play therapist reported that Pierce repeatedly stated that he was "so scared," that he was afraid to go up or down stairs, and that his imaginary play was violent. She diagnosed him with posttraumatic stress disorder (PTSD). The preadoptive parents reported flashbacks, nightmares, and fear of department social workers. According to a child trauma expert who conducted an in-person evaluation of Pierce over five sessions, he suffered from PTSD, was anxious and afraid, was hypervigilant, and had exaggerated emotional reactions. The expert opined that it did not appear that Pierce was coached by the foster parents, particularly because the effects of child coaching generally do not last over multiple sessions.[4] She stated that he used age-appropriate language to describe his fears and that his affect (disassociation, body rigidity, rapid breathing) could be attributed to PTSD.
The judge determined that the mother suffered from longterm mental health and substance use issues and posed a risk to Pierce's welfare. She further found that Pierce had special mental health needs, that he required a high level of sensitivity, stability, and continuity, that the proposed adoptive parents were able to meet those needs, and that there was a strong bond between Pierce and the preadoptive parents. It is against this backdrop that we evaluate the mother's claims of error.
The mother contends that there is no nexus between the mother's mental health issues, her drug use, and Pierce's welfare or her ability to care for him. However, the record demonstrates that the mother has suffered from substance use disorder for a period of fifteen years, encompassing efforts at rehabilitation followed by relapse.[5] While this pattern may be understandable, and all may hope that the mother will one day maintain her sobriety, the impact of such cyclical relapse on a child as fragile as Pierce is evident. He was the second of three infants born substance exposed. The mother took multiple unprescribed medications during the time she cared for him in 2019, and did not participate in substance abuse treatment for extended periods of time because she thought she did not need it. In 2019 to 2020, while he was in the care of the preadoptive parents, she ceased all contact, recognizing that she needed time and distance for her own recovery. See generally Adoption of Yalena, 100 Mass.App.Ct. 542, 552-553 (2021). The best interests of the child dictate that the needs of the child remain uppermost. The judge's finding that the mother's ongoing substance abuse issues posed a risk to Pierce, a child particularly in need of stability and continuity, was not clearly erroneous. See Adoption of Luc, 484 Mass. 139, 146147 (2020) .
The mother maintains that the evidence underlying the findings was stale to the extent that the judge relied on evidence before June of 2020, when she sought substance abuse treatment. The judge was entitled to consider the mother's entire history. "Prior history . . . has...
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